Smt. Usha N. Dadlani & Ors. vs Shri Anil Kumar Oberoi & Ors.
2001 Latest Caselaw 1093 Del

ORDER

Arijit Pasayat, C.J.

1. This is an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (in short, 'CPC') seeking permission to examine certain officials of Delhi Vidyut Board (hereinafter referred to as 'the Board') and to accept certain certificates purportedly given by the Board as additional evidence. The application relates to LPA No. 95 of 1991, which is directed against the order of learned Single Judge in FAO No. 1981.

2. The appellants-petitioners are the widow, daughter and son of Shri Narender N. Dadlani (hereinafter referred to as 'the deceased'), who succumbed to injuries sustained on account of fatal vehicular accident on 02.11.1997. Offending vehicle was the subject matter of insurance with New India Assurance Co. Ltd. (hereinafter referred to as 'insurer'). The deceased was working as an employee of the Board. Petitioners as claimants lodged a claim for compensation. It was their stand that the deceased was getting about Rs. 1,100/- per month at the time of accident. The claim of Rs. 5 lakhs was lodged before the Motor Accident Claims Tribunal (in short, 'the Tribunal'). In consideration of the materials brought-on-record, more particulars, the compensation was fixed at Rs. 1,00,351/- by the Tribunal. In appeal, learned Single Judge enhanced the compensation to Rs. 2,40,000/-. Multiplier adopted by the Tribunal was 15, while the learned Single Judge enhanced it to 25. Interest @ 12% was also allowed from the date of filing claim application. It is to be noted that the Tribunal had granted the insurer sixty days time to pay the compensation amount, stipulating further that in case of failure to pay, the awarded amount shall carry interest @ 6% from date of award till realization.

3. The present application has been filed with a prayer to bring on record certain certificates purported to have been issued stating that in and around 1998, the deceased would have got higher salary than what he was getting at the time of accident. The prayer has been resisted by the respondent-insurer on the ground that the application is an attempt to fill up lacunae. The ingredients, necessary to bring into operation Order 41 Rule 27 of CPC, are squarely absent and the application should not be accepted.

4. Provisions for production of additional evidence in Appellate Court is contained in Order XLE, Rule 27 of CPC. Clause (aa) has been inserted in this Rule by the Amendment Act of 1976 to provide that additional evidence may be received by the Appellate Court, if the appellant satisfies the Court that after the exercise of due diligence, such evidence was not within his knowledge or could not be produced when the appeal was decided against him. The Rule refers primarily to cases where on examining the evidence as it stands some inherent lacuna or defect becomes apparent, and the Appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. The Rule is not intended to give a party a second opportunity of proving his case but to supply a defect in existing evidence on the record. Order XLI, Rule 27 relates to taking of additional evidence in the Appellate Court. In its 27th Report, an amendment had been recommended by the Law Commission in this Rule in implementation of the recommendation made in the Fourteenth Report (Volume-I page 405, para 45, second sub-paragraph). The object was to provide that additional evidence may be allowed by the Appellate Court, if the evidence could not be produced in the Lower Court because it was not within the knowledge, etc. of the party seeking to produce it now. (Vide Fifty-fourth Report of Law Commission of India, page 300). Under Clause (aa) the Appellate Court must give its opinion in the order admitting evidence that the party intending to file the evidence notwithstanding the exercise of due diligence could not produce the document at the trial. Original Rule 27 consisted of two parts. The first part embraces a case in which the Trial Court has refused to admit evidence, which ought to have been admitted and the second part relates to a case in which the Appellate Court requires additional evidence to be produced in order to enable it to come to a decision. Newly added clause (aa) provides a third category. For bringing its application, applicant has to establish that either the document was not within his knowledge or with due diligence could not produce the document. It is to be noted that in the instant case the applicants in the claim petition had clearly stated the salary of the deceased to be around Rs. 1,500/- per month. In fact in 1989, an application under Order 41 Rule 33 CPC was filed indicating the future pay structure for consideration of learned Single Judge. The present documents have issued by the authorities in response to various queries of the claimants, raising hypothetical points. It is to be noted that from the beginning, Board has pointed out that deceased was not holding any substantive post. The hypothetical figures of projected increase in the salary structure do not come within the ambit of Order 41 Rule 27 CPC. The true test to be applied in dealing with application for additional evidence is whether the Appellate Court would be able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be admitted. Prayer for acceptance of additional evidence, when it is merely for filling up gaps in evidence is to be rejected. (See Arjun Singh v. Kartar Singh, , and Natha Singh v. Financial Commissioner Punjab, ). The present application in essence is an attempt to change the substratum of the claim and in reality not an application for accepting additional evidence. Therefore, the prayer for accepting additional evidence is rejected.

5. This application is accordingly disposed of.